US must tell defendants when spying is used to build case against them

Government's limited admission is "important first step," ACLU says.

The Justice Department admitted in a court filing Tuesday that it must tell defendants when the evidence it intends to use against them was gathered in a FISA-approved spy operation. This is the first time the department has acknowledged "in a terrorism prosecution that it needs to tell defendants when sweeping government surveillance is used to build a criminal case against them," the Wall Street Journal said.

The filing (PDF) came in the government's case against Pakistan-born brothers Raees Alam Qazi and Sheheryar Alam Qazi. The two were accused in US District Court in Southern Florida of conspiring to provide material support to terrorists and conspiring to use a weapon of mass destruction.

The government's filing was a response to the brothers' request that the court reconsider an order letting the government present evidence ex parte and in camera, i.e. without the defendants being present. A court filing by the brothers said they were stonewalled by the government when seeking to find out whether the Justice Department was using evidence derived from surveillance authorized under the Foreign Intelligence Surveillance Act (FISA).

"If it can avoid giving proper notice to defendants, as it seeks to do here, the government can avoid a challenge to the FAA (FISA Amendments Act) altogether," the defendants' filing states. "In the nearly five years since the FAA was enacted, the government has never once disclosed its reliance on material obtained through FAA surveillance to counsel’s knowledge. It would undoubtedly prefer to maintain that record that has rendered the government’s warrantless wiretapping program essentially unreviewable in the interim. In effect, the Government’s effort to proceed in an in camera and ex parte setting would only further insulate the FAA from judicial review."

A court order on May 6 told the US to provide the defendants "advance notice of its intent to use or disclose information obtained or derived pursuant to the FISA Amendments Act," and to disclose "whether the affidavit and other evidence offered in support of any FISA order relied on information obtained under or derived from an FAA surveillance order."

While opposing the brothers' motion, the Justice Department said, "As required by 50 U.S.C. §§ 1806(c) and 1825(d), the Government has notified the defense and this Court that it intends to use against the defendants in this case evidence obtained or derived from electronic surveillance or physical search under Title I and Title III of the Foreign Intelligence Surveillance Act ('FISA'). The Government would likewise provide notice to the defense and this Court if the Government intended to use in this case any information obtained or derived from surveillance authorized under Title VII of FISA (the FISA Amendments Act or 'FAA'), as to which a defendant is an aggrieved person. No such notice has been provided. Nor should such notice be provided in this case, because the Government does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution."

The government's latest filing asks the court to complete the in camera, ex parte review the US has requested and then "vacate its order… compelling the Government to disclose certain information."

Despite opposing the defendants' requests, the filing is "a very important first step, because it's the government finally owning up to some of its obligations in a way that it hasn't really grappled with up to this point," American Civil Liberties Union lawyer Patrick Toomey told the Journal.

The government's "filing suggests a new potential avenue for legal challenges to the surveillance programs," the Journal wrote. "For years, privacy advocates and private citizens have filed lawsuits seeking to challenge NSA surveillance. Many of those cases failed to gain traction because courts ruled the plaintiffs had no ability to prove they had been subjected to such surveillance."